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Early v. Heckler

decided: September 14, 1984.

JAMES EARLY, APPELLANT
v.
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES



On Appeal from the United States District Court for the Middle District of Pennsylvania.

Sloviter and Becker, Circuit Judges, and Fullam, District Judge.*fn*

Author: Sloviter

Opinion OF THE COURT

Sloviter, Circuit Judge.

I.

James Early appeals from a decision of the Secretary of Health and Human Services denying his claim for disability benefits under the Social Security Act. Early was initially determined by the Secretary to be disabled due to gouty arthritis as of May 28, 1976 and received disability benefits; however, the Secretary found that Early had ceased to be disabled as of December 1981 and was therefore not entitled to benefits as of February 1982.*fn1 A hearing was held before an Administrative Law Judge (ALJ), who concluded that Early had the ability to perform sedentary work and, consequently, was no longer disabled. After the Appeals Council denied Early's request for review, and the Secretary's decision became final, Early filed this action pursuant to 42 U.S.C. ยง 405(g). Both parties filed motions for summary judgment, the magistrate recommended that the Secretary's motion be granted, and the district court entered judgment for the Secretary.

The determinations of both the Secretary and the magistrate as to Early's burden to prove his disability predate this court's decision in Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir. 1983). In Kuzmin, we held that in a termination proceeding, once a claimant introduces evidence, as here, that his or her condition "remains substantially the same as at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling." Id. at 1237. The district court made an independent review of the record in light of Kuzmin, and found itself "unable to conclude that any determination by the Secretary that Plaintiff's condition has so improved would [] be supported by substantial evidence."*fn2 App. at 56a. Consequently, the court found that Early's benefits could "not be terminated upon this basis." Id. However, the court found that Early's admission that he could perform sedentary work "must be given substantial weight." Id. It therefore concluded that the Secretary's decision was supported by substantial evidence on the basis that Early's testimony alone showed either that the initial determination was erroneous or that his condition had improved sufficiently to allow him to undertake gainful activity. Id. at 56a-57a.

We disagree because we conclude that Early's testimony does not constitute substantial evidence of the kind necessary to support the Secretary's finding of nondisability, and that there is no other evidence on the record tending to show that Early's condition had improved.

II.

James Early was 44 years of age at the time of the administrative hearing and has a high school education. He has worked as a route salesman, truck driver, and welder. Early maintains that he continues to suffer, as he did at the time of the initial determination of disability in May 1976, from acute and painful exacerbation and swelling of his joints, occasional locking of the joints, and sudden flare-ups of his gouty condition, even while on prescribed medication for gout.

On December 4, 1981, Dr. Joseph R. Sgarlat, a general and orthopaedic surgeon, performed a consultative orthopaedic examination on Early. Dr. Sgarlat reported that Early was being treated at the Veterans Administration Hospital and "takes gout medication regularly", and that he "continues to have pain in his elbows, knees, hands, wrists and feet and walks with a cane." App. at 86a. Dr. Sgarlat also reported that there had been "recurrences of subcutaneous nodules along the areas of the elbows . . ., but not in the foot," and that Early had "normal" ranges of motion in the shoulders, hips, knees, and ankles, "almost full" ranges of motion in both elbows, "mild loss of full motion" in the wrists, and "full opening and closing" in the hands, except that his left small finger sometimes locks in flexion. Id. Dr. Sgarlat found "some grating in the knees but no joint effusion." An x-ray was taken of Early's left knee, the joint he said gave him the greatest problem. Id. Dr. Sgarlat concluded that the x-rays were "within normal limits" and that there were "no gouty arthritic signs present." Id. Dr. Sgarlat's diagnosis of Early's condition was "gouty arthritis involving primarily his elbows, . . . a condition that is treatable with proper medication and when given properly should allow the patient to resume very nearly normal activities." Id. at 87a. Dr. Sgarlat's opinion was that in Early's present condition, he would be able to do "at least a sedentary or even a light job." Id.

Early's treating physician at the VA Hospital, Dr. Sharma, reported that Early suffered from pain and swelling in his knees and elbows that had grown progressively worse despite his medications, which included Allpurinol, Colchrin and Indocin, and that Early therefore had difficulty walking. Dr. Sharma's diagnosis was chronic tophaceous arthritis in the knees and elbows and mild mid-tender swelling of the both knees and elbows. App. at 115a-16a. In April 1982, Dr. Sharma concluded that Early was "not able to work because of his severe disability," App. at 121a, and several months later restated that Early was "totally disabled by gout." App. at 115a-17a.

The medical records in 1981 and 1982 show several in-patient hospitalizations and out-patient treatments because of flare-ups of gout, App. at 81a-85a, 88a-113a, during which acute exacerbation and swelling was noted. App. at 85a, 94a-95a, 103a. The medical records also document Early's complaints of pain and stiffness in the joints despite the use of medication. App. at 103a, 105a, 109a.

A review of the medical records of Early's treatment and hospitalizations from January 1982 to July 1982 reveals that Early "cannot walk or stand and that both knees swell, Has pain in right instep" (App. at 109a); "left knee swells [when] walking and is painful", "sudden pain in left knee", "has gout involving both knees and walking . . . is difficult for him" (App. at 110a); "pain and aches in various joints, knees, ankles and elbows", (App. at 111a); "consistently runs high uric acid" (App. at 113a); "has severe gout involving all his joints particularly both knees and ankles", "requires frequent assistance and walks with a cane," "is not able to work because of his severe disability." (App. at 114a); "pain and swelling in all his joints involving toes, knees, elbows. Diff[iculty] in walking because of painful knees. Condition got worse, progressively worse despite medication." (App. at 115a). "Chronic tophaceous arthritis-knees and elbows mild-mod. Tender swelling left and right knees and left and right elbows" (App. at 116a); "unable to make fist (grasp) in either hand", "Hand x-rays are more consistent with severe gout." (App. at 118a). The record also refers to laboratory findings and x-ray reports (App. at 119a), which are the basis for Dr. ...


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